Marpac Construction Llc, V. Department Of Labor & Industries

• Court: Court of Appeals of Washington
• Decided: March 28, 2022
• Docket: 82200-4
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

MARPAC CONSTRUCTION, LLC , No. 82200-4-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION DEPARTMENT OF LABOR AND INDUSTRIES OF THE STATE OF WASHINGTON,

Respondent.

APPELWICK, J. — Marpac appeals the determination that it committed three

serious willful WISHA violations pertaining to safe crane operation near energized

power lines. Marpac’s actions show an indifference to safety that satisfies the

standard for a willful violation. We affirm.

FACTS

Marpac Construction LLC was the general contractor on an apartment

complex construction project on Oregon Street and 42nd Avenue in West Seattle.

The worksite had high voltage power lines running along Oregon Street, across an

alley, and on 42nd Avenue. Seattle City Light had flagged the power lines along

42nd Street on the east side of the project with a 10 foot offset.1 None of the other

power lines were flagged. Marpac’s superintendent, Todd Weeks, never called

Seattle City Light to check the voltage of the lines. He assumed they were between

1 The flags were placed 10 feet away from the high voltage line.

Citations and pin cites are based on the Westlaw online version of the cited material. No. 82200-4-I/2

26 kV (kilovolts) and 50 kV based on their connection to the lines flagged by Seattle

City Light. Initially, Marpac had planned to bury the power lines on the west side

of the project. But, in September 2016, the lines remained above ground.

Marpac had subcontracted with Spartan Concrete Inc. to work on the

building’s structural foundation. It started with the basement where the work was

safely performed outside the proximity of the power lines. When construction

approached street level, the owner of Spartan expressed his concerns about

working around the power lines. According to Spartan’s owner, Weeks told him

that Marpac was working on mitigation of the power line hazard and Spartan was

to continue working.

Crane operator Denny Yuckert was working with Spartan to erect concrete

columns. Yuckert used a crane to lift heavy concrete forms around vertical rebar

so Spartan workers could pour concrete into the forms. After the concrete had set,

Yuckert removed the forms and repeated the process for the next column.

On September 26, 2016, a Spartan cement truck arrived while Weeks,

Yuckert, and foreman Andrew Williams were on break. The truck could not park

to pour a column because the crane and concrete forms were in the way. Weeks

and Williams told Yuckert to move the panels and tear down the crane so the truck

could park.

Yuckert returned to the jobsite and found Spartan employees Juan Estrada

and Mario Pacheco taking their break near the crane. The men had a brief

conversation about moving the panels. Yuckert was aware of the energized power

lines nearby but he did not “really take it into consideration.” The lines were not

2 No. 82200-4-I/3

flagged and there was no designated spotter for the lift. Estrada and Pacheco

chained the panels to the ball of the crane. Yuckert was in the crane and began

moving the panels. Estrada signaled to Yuckert to pick up the panel. Estrada

continued to signal Yuckert as he maneuvered the panels. Yuckert lowered the

panels as directed. Estrada and Pacheco grabbed the chains to disconnect them

from the forms. Yuckert heard “a big pop,” saw smoke, and saw Estrada being

blown backward. Yuckert realized that the crane’s line had contacted the power

lines, electrocuting Estrada and Pacheco. Both men suffered serious injuries.

The Department of Labor and Industries (DLI) responded to the scene and

conducted an inspection and investigation. Marpac received citations for six

violations. Three citations were for serious violations and three were willful serious

violations. DLI assessed a total penalty of $133,500. The willful serious violations

amounted to $126,000 of the penalties.

Marpac appealed the citation to the Board of Industrial Insurance Appeals

(Board). The Board upheld the citations, including the three willful determinations,

because “Marpac management substituted its own judgment for and exhibited

indifference to the safety requirements.” Specifically,

Marpac managers knew the power Iines bordering the construction site were energized, high-power Iines. They knew the Iines along the west alley were supposed to be buried. When this did not occur, Marpac managers continued to instruct its employees to work near and under the power Iines without instituting other safety measures. Marpac failed to learn the voltage of the power Iines and erroneously established a 15-foot distance limitation from the Iines. This limitation should have been 20 feet. Marpac knew spotters were not being used for all lifts being conducted near the power Iines. The repetition, frequency and seriousness of Marpac’s failures to comply with safety standards were the result of a culture of indifference created largely by Superintendent Weeks. Mr. Weeks routinely substituted his judgment for safety rules.

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Marpac filed a petition for review of the Board decision. Marpac challenged only

the three “willful” classifications, conceding that the six violations were “serious.”

The Board denied review and adopted the proposed decision as its final decision.

Marpac filed an appeal of the Board’s decision in King County Superior

Court. The trial court affirmed the Board’s decision and entered a judgment

against Marpac for the amount of the fines. Marpac appeals.

DISCUSSION

In a Washington Industrial Safety and Health Act of 1973 (WISHA), chapter

49.17 RCW, appeal, we review a decision by the Board based on the record before

the agency. Shimmick Constr. Co, Inc. v. Dept. of Labor & Indus., 12 Wn. App. 2d

770, 778, 460 P.3d 192 (2020). The Board’s findings of fact are conclusive if they

are supported by substantial evidence, which is evidence “in sufficient quantity to

persuade a fair-minded person of the truth of the declared premise.” Frank

Coluccio Constr. Co. v. Dept. of Labor & Indus., 181 Wn. App. 25, 35, 329 P.3d 91

(2014). We then determine whether the findings of fact support the conclusions of

law. Id. We construe evidence in the light most favorable to the party that

prevailed in the administrative proceedings. Shimmick, 12 Wn. App. 2d at 778.

We interpret agency regulations as if they are statutes and review questions

of law de novo. Id. Substantial weight is given to DLI’s interpretation of WISHA.

Id. WISHA statutes and regulations are construed liberally “in order to achieve

their purpose of providing safe working conditions for every worker in Washington.”

Erection Co. v. Dep’t of Labor & Indus., 160 Wn. App. 194, 202, 248 P.3d 1085

(2011). If Washington law does not provide controlling case law, we may look to

4 No. 82200-4-I/5

federal decisions interpreting WISHA’s federal analogue, the Occupational Safety

and Health Act of 1970 (OSHA), 29 U.S.C. §§ 651-78. Shimmick, 12 Wn. App. 2d

at 778.

WISHA requires employers to “furnish to each of his or her employees a

place of employment free from recognized hazards that are causing or likely to

cause serious injuries or death.” RCW 49.17.060(1). Under WISHA, a serious

violation “shall be deemed to exist in a workplace if there is a substantial probability

that death or serious physical harm could result from a condition” in the workplace

unless the employer did not and could not know of the presence of the violation

with the exercise of reasonable diligence. RCW 49.17.180(7). Violations may also

be deemed “willful.” RCW 49.17.180(1). A willful violation involves a voluntary

action, done either with an intentional disregard of or plain indifference to the

requirements of the statute. Elder Demolition, Inc. v. Dep’t of Labor & Indus., 149

Wn. App. 799, 807, 207 P.3d 453 (2009). Neither malicious motives nor specific

intent are necessary for a willful violation. Id. at 808. Rather, “a plain indifference

to safety requirements is sufficient by itself to establish a willful violation.” Id. An

act may be willful if the employer shows an “‘indifference’” to the rules, with a state

of mind such that “‘if he were informed of the rule, he would not care.’” Id. (internal

quotation marks omitted) (quoting Brock v. Morello Bros. Constr., Inc., 809 F.2d

161, 164 (1st Cir. 1987)).

DLI bears the initial burden of proving a WISHA violation. Frank Coluccio,

181 Wn. App. at 36. Marpac concedes that its violations were serious, challenging

only the willful classifications of three of the six violations.

5 No. 82200-4-I/6

I. Power Line Safety

A. WAC 296-155-53408(2)(b)

Operation of a crane or derrick requires precautions to prevent

encroachment when any part of the crane, load line, or load could come within 20

feet of a power line up to 350 kV. WAC 296-155-53408(1)(a), (2)(b). The

regulation includes three options for encroachment precautions:

(i) Option (1) - Deenergize and ground. Confirm from the utility owner/operator that the power line has been deenergized and visibly grounded at the worksite.

(ii) Option (2) - Clearance. Ensure that no part of the crane/derrick, load line or load (including rigging and lifting accessories), gets closer than 20 feet of a power line that is up to 350 kV or closer than 50 feet of a power line that exceeds 350 kV by implementing the measures specified in (b) of this subsection.

(iii) Option (3) - Table 4 clearance.

(A) Determine the line’s voltage and the minimum approach distance permitted under Table 4 of this section.

(B) Determine if any part of the crane/derrick, load line or load (including rigging and lifting accessories), could get closer than the minimum approach distance of the power line permitted under Table 4 of this section. If so, then you must follow the requirements in (b) of this subsection to ensure that no part of the crane/derrick, load line, or load (including rigging and lifting accessories), gets closer to the line than the minimum approach distance.

WAC 296-155-53408(1)(a) (boldface omitted). Options 2 and 3 have additional

requirements including planning meetings to review locations of the power lines

and steps to prevent encroachment and electrocution, and elevated warning lines

with high visibility markings at 20 feet from the power line or use of a designated

spotter. WAC 296-155-53408(2)(b). In order to use Option 3, Marpac was

required to determine the voltage of the power line. WAC 296-155-

6 No. 82200-4-I/7

53408(1)(a)(iii)(A). The utility owner/operator must provide the voltage

information. WAC 296-155-53408(2)(c).

Marpac contends its violation of WAC 296-155-53408(2)(b) was not willful

because it “had a good faith belief that it complied with the cited regulations.”

Among its cited reasons for this good faith belief, Marpac notes that it observed a

15 foot zone under the power lines that exceeded the 10 foot minimum distance

for power lines under 50 kVs required by WAC 296-155-53408 Table 4.

But, Marpac did not contact the utility to determine the voltage of the power

lines at the site. Weeks assumed the lines were between 26 kV and 50 kV but

never confirmed his assumption with Seattle City Light. As a result, Marpac could

not use the precautions established in Option 3 that would have allowed a 10 foot

safety zone. WAC 296-155-53408(1)(a)(iii)(A), Table 4. Because the voltage was

unconfirmed, Marpac needed to observe the most protective precaution as set out

in Option 2. WAC 296-155-53408(1)(a)(ii). Failure to either determine the voltage

and minimum safe distance in Option 3 or default to the more protective Option 2

showed a “plain indifference” to the requirements that amounts to a willful violation.

See 149 Wn. App. at 807.

Additionally, Marpac knew that the construction was encroaching on the

power lines but directed work to continue. The owner of the subcontractor raised

this concern with Weeks. Weeks indicated that Marpac was working to mitigate

the hazard and to continue working in the meantime. But, people continued to

work under the energized power lines for several weeks leading up to the accident.

This included operation of the crane with a boom that could extend 52 feet under

7 No. 82200-4-I/8

power lines 36.75 feet off the ground. Considering the evidence in the light most

favorable to DLI, Marpac’s weeks of work under the power lines without proper

mitigation shows the level of indifference to safety to support the willful designation.

B. WAC 296-155-53408(2)(d)(i)

Marpac was cited with a serious willful violation because it “did not prohibit

the use of extendable forklift and crane below energized power lines.” Unless an

exception applies, “[n]o part of the crane/derrick, load line or load (including rigging

and lifting accessories) is allowed below a power line unless you have confirmed

that the utility owner/operator has deenergized and (at the worksite) visibly

grounded the power line.” WAC 296-155-53408(2)(d)(i). None of the exceptions

applied to this construction site.2 In addition to the operations of the crane, Marpac

also used a forklift modified with a boom attachment under the power lines. A

2 WAC 296-155-53408(2)(d)(ii) states, Exceptions. (d)(i) of this subsection is inapplicable where you demonstrate that one of the following applies: (A) The work is covered by chapter 296-45 WAC. (B) For cranes/derricks with nonextensible booms: The uppermost part of the crane/derrick, with the boom at true vertical, would be more than 20 feet below the plane of a power line that is up to 350 kV, 50 feet below the plane of a power line that exceeds 350 kV or more than the Table 4 minimum clearance distance below the plane of the power line. (C) For cranes with articulating or extensible booms: The uppermost part of the crane, with the boom in the fully extended position, at true vertical, would be more than twenty feet below the plane of a power line that is up to 350 kV, fifty feet below the plane of a power line that exceeds 350 kV or more than the Table 4 minimum clearance distance below the plane of the power line. (D) Compliance with (d)(i) of this subsection is infeasible and meets the requirements of subsection (4) of this section.

8 No. 82200-4-I/9

forklift with this attachment can be used as a crane and should not be operated

under power lines.

Weeks admitted that the modified forklift worked under the power lines.

This was a violation of WAC 296-155-53408(2)(d)(i). Marpac argues that it was

unaware that adding an attachment to a forklift would subject it to crane power line

regulations but took numerous steps to ensure that the forklift did not come within

10 feet of the power lines. But, Marpac’s lack of knowledge supports rather than

refutes the willfulness designation. Georgia Elec. Co. v. Marshall, 595 F.2d 309,

320 (5th Cir. 1979) (“It is precisely because the Company made no effort

whatsoever to make anyone with supervisory authority at the job site aware of the

OSHA regulations that the Company can be said to have acted with plain

indifference and thereby acted willfully.”). Marpac’s ignorance of the important

safety rules when working equipment capable of encroaching on energized power

lines shows an indifference to safety that supports the finding of a willful violation.

II. Lift Director—WAC 296-155-53401

DLI also cited Marpac with a serious willful violation related to the lack of a

designated qualified lift director. WAC 296-155-53401(5)(c) requires the site

supervisor to ensure that a qualified person is designated as the lift director. The

lift director “[d]irectly oversees the work being performed by a crane and the

associated rigging crew.” WAC 296-155-53401(1). Marpac claims this violation

was not willful because it assigned Williams to perform the duties of the lift director.

The record contradicts Marpac’s claim. Williams adamantly denied that he

was lift director. Williams said he was the site foreman, “and [his] paycheck reflects

9 No. 82200-4-I/10

that.” During the investigation, Williams told Gary Orsborn, “‘They’re going to try

to stick me on that, but I keep telling them no. I don’t understand the rules well

enough. And they promised me they’d get me more training.’” Williams said he

had “‘[n]ot really’” had any training to be lift director.

Based on this evidence, Williams was not a qualified lift director and had

informed Marpac of his lack of qualification and lack of interest in serving as lift

director. Marpac showed an indifference to the safety requirements by either

failing to appoint a lift director or appointing an unqualified lift director. Either

interpretation of the testimony supports the willfulness of the violation.

We affirm.

WE CONCUR: